Opinion
19-P-1791
12-28-2020
DAVID PROULX, petitioner.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
David Proulx appeals from a Superior Court judgment dismissing his petition under G. L. c. 248 for habeas corpus relief. Proulx claimed that the Parole Board (board) is unlawfully restraining him despite the expiration of his fifteen-year sentence for rape of a child with force. On Proulx's motion for summary judgment, a judge ruled that the running of that sentence had been tolled by G. L. c. 127, § 149, based on Proulx's commission, while on parole from the rape sentence, of second-degree murder, and the resulting life sentence that he is still serving. The judge concluded that Proulx was not being unlawfully restrained and thus entered summary judgment against him, dismissing the petition. We affirm the judgment of dismissal.
Background. On July 2, 1980, Proulx was convicted of rape of a child with force and received a fifteen-year sentence to the Massachusetts Correctional Institution at Concord. On November 24, 1981, Proulx was released on parole. On December 21, 1982, while on parole, Proulx murdered a child; as a result, on February 14, 1984, he was convicted of murder in the second degree and sentenced to life in prison.
See Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 554-555 (2002) (describing "Concord sentence"). For simplicity, we omit the details of the jail time credits that Proulx received under G. L. c. 279, § 33A, against both his rape sentence and his later murder sentence.
The conviction was affirmed on direct appeal. See Commonwealth v. Proulx, 23 Mass. App. Ct. 985 (1987). We omit the lengthy history of Proulx's unsuccessful motions for a new trial and other postconviction litigation.
While the murder charge was pending, the board, on February 15, 1983, revoked Proulx's parole and issued a parole violation warrant but never served the warrant. The board instead has treated the warrant as a detainer lodged behind Proulx's life sentence. In the board's view, the detainer will cause him, once his murder sentence expires, to resume serving his rape sentence, the running of which the board treats as having been tolled by the operation of G. L. c. 127, § 149. Since 1987, Proulx has asked the board on several occasions to withdraw the warrant (i.e., lift the detainer), which could allow him to resume serving his rape sentence. The board has declined to do so, and has also denied Proulx's requests for parole from his murder sentence. Proulx remains incarcerated on the murder sentence.
Proulx brought this habeas petition, claiming that § 149 violates the separation of powers requirements of art. 30 of the Declaration of Rights of the Massachusetts Constitution. The judge issued a thorough and well-reasoned decision rejecting this claim, and Proulx appealed.
Discussion. "An order granting or denying summary judgment will be upheld if the trial judge ruled on undisputed material facts and his ruling was correct as a matter of law." Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 536 (1992), citing Community Nat'l Bank v. Dawes, 369 Mass. 550, 556 (1976). Here, there are no material facts in dispute, and so we proceed to discuss the application and validity of § 149.
Proulx's brief on appeal appears to view § 149, incorrectly, as having first been enacted in 1986, years after his sentencing for rape, and thus as having some impermissible retroactive effect. In fact, § 149 has existed in essentially the same form since at least 1972. See St. 1972, c. 154, § 1; St. 1980, c. 155, § 6; St. 1986, c. 327. Applying § 149, because of the murder charge, the board revoked Proulx's parole from his rape sentence and issued a parole violation warrant on February 15, 1983. By operation of the statute, the time between the day after that parole revocation and the service of the warrant is not considered part of the term of his rape sentence. Proulx thus stopped serving his rape sentence on February 16, 1983; the running of that sentence was tolled, with approximately twelve years remaining.
We thus see no State or Federal ex post facto or due process retroactivity obstacle to applying the 1980 or 1986 versions of § 149 to Proulx. Proulx's passing reference in his brief to the Fourteenth Amendment to the United States Constitution, does not rise to the level of appellate argument, and therefore we do not consider it. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). See also Kyricopoulos v. Commonwealth, 484 Mass. 1008 (2020).
Section 149 also governs when the warrant was or is to be served, so as to determine when Proulx resumed or will resume serving his rape sentence. Because Proulx was convicted of murder while on parole, service of the parole warrant "shall not be effective until the expiration of any additional sentences by parole or otherwise." G. L. c. 127, § 149. This means that, at least for so long as Proulx is serving his murder sentence, service of the parole warrant is not effective. Accordingly, Proulx will not resume serving his rape sentence at least until the expiration of his murder sentence. "Under this provision, time spent by the plaintiff in satisfaction of the second sentence does not count toward completion of the first." Pina v. Superintendent, Mass. Correctional Inst., Walpole, 376 Mass. 659, 664 (1978). See Goetzendanner v. Superintendent, Mass. Correctional Inst., Norfolk, 71 Mass. App. Ct. 533, 539 (2008) (same). See also Kleczka v. Commonwealth, 350 Mass. 74, 76 (1966) (applying 1946 version of § 149; proper to lodge unserved parole warrant with institution where parolee was serving sentence for crime committed while on parole).
Although Proulx contends that his rape sentence has been unlawfully increased, § 149 plainly provides that the running of his rape sentence stopped as of February 16, 1983, and will not restart until the effective service of the warrant. Section 149 does not increase the length of that sentence, but merely alters the time at which the remainder would be served. Thus § 149 does not constitute unconstitutional legislative or executive branch interference with the length of Proulx's judicially-imposed sentence.
Nor does the operation of § 149 constitute any unconstitutional interference with judicial powers. This is established by Sheehan, petitioner, 254 Mass. 342 (1926), a case upon which Proulx himself relies. In Sheehan, the court held that a statute governing the manner in which a sentence could be executed, and that was in effect at the time a particular sentence was imposed, "was as much a part of the sentence as if it had been extended at length on the record of the court." Id. at 346. See id. at 347 (statute and its application by executive officials did "not interfere with the execution of the sentence of the court because they are a part of that sentence"). Because the establishment of penalties for crimes was a legislative function, and because "[t]he execution of sentences according to standing laws is an attribute of the executive department of government," id. at 345, application of the statute in question did not constitute either a legislative or an executive interference with the judicial power to impose sentences on those convicted in particular cases, and thus did not violate art. 30. See id. at 345-347.
Like the statute at issue in Sheehan, § 149 was in effect at the time Proulx committed and was convicted and sentenced for the rape, and thus it is effectively part of that sentence. Therefore, its regulation of when Proulx serves his sentence did not violate art. 30.
Nor is the constitutionality of § 149 called into question by Commonwealth v. Cole, 468 Mass. 294 (2014), where the court held that a statute providing for "community parole supervision for life" unconstitutionally granted to the board "a quintessential judicial power, the power to determine whether a defendant should be sentenced to additional terms of imprisonment, and therefore violates art. 30." Id. at 295. Unlike the statute invalidated in Cole, § 149 does not confer on the board any authority to sentence a person to any additional term of imprisonment.
The 1986 version of § 149 does include one new feature:
"The provisions of this section shall not be deemed to preclude the board from withdrawing a parole violation warrant at any time. In computing the period of the parolee's confinement, the time between the day after the issuance of the parole violation warrant until the withdrawal of said warrant shall not be considered as any part of the term of the parolee's original sentence."St. 1986, c. 327. This language makes it clear that the board has the discretion to withdraw a previously-issued parole warrant, and it implies that the time after such withdrawal will be considered part of the parolee's original sentence.
Withdrawal of a warrant, however, does not result in all time since the release on parole being credited toward the original sentence. The board has adopted a regulation making clear that "[w]here the parole violation warrant is withdrawn, the time between the day after the issuance of the parole violation warrant until the withdrawal of said warrant is not considered as any part of the term of the underlying sentence being served on parole" (emphasis added). 120 Code Mass. Regs. § 303.15(1)(b) (2017).
Thus, if the board chose to exercise the discretion accorded to it under the 1986 version of § 149 and withdraw the warrant (i.e., lift the detainer) in Proulx's case, the time after the withdrawal would appear to count toward Proulx's rape sentence. This, in turn, could reduce or eventually eliminate the amount of time that Proulx would still have to serve on the rape sentence. However, the fact that the board has the discretionary authority to accelerate the date when Proulx will resume serving his rape sentence does not transform the board's decision not to do so into an increase in the length of that sentence. The motion judge correctly rejected Proulx's argument to that effect.
Conclusion. Because § 149 tolled the running of Proulx's rape sentence while he is imprisoned on his murder sentence, Proulx is not entitled to immediate release, and thus his habeas petition was properly dismissed. See, e.g., Goetzendanner, 71 Mass. App. Ct. at 538 (to obtain relief, habeas petitioner must establish entitlement to immediate release).
Judgment affirmed.
By the Court (Massing, Sacks & Grant, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 28, 2020.